The Return of Forgotten Critique: Some Remarks on the Intellectual Sources of the Polish Populist Revolution

The Law and Justice party (Prawo i Sprawiedliwość, or PiS), which has been ruling in Poland since 2015, has developed a specific narrative about the law and judiciary, which constitutes the ideological background of its stance in the conflict concerning the rule of law in the country. The main tenets of the legal ideology of Law and Justice include the views that judicial decisions are not determined by legal texts (the indeterminacy thesis), and that judges are part of an elite who are detached from society at large and are attempting to impose the liberal world-view upon a conservative society. The aim of the paper is to deconstruct those ideological constructs in a search for their possible sources in certain critical currents in the legal theory of the Polish People’s Republic, represented by Stanisław Ehrlich, Leszek Nowak and Jarosław Ładosz. The paper notes interesting parallels between the legal ideas developed by those three legal theorists and the current narrative put forward by Law and Justice. Whilst stopping short of claiming a direct and conscious inspiration, the paper nonetheless hypothesises possible avenues of influence, including the academic mentorship of Ehrlich over Jarosław Kaczyński in the early 1970s and Nowak’s involvement in the ‘Solidarity’ movement in the 1980s following his anti-Marxist intellectual and political turn. The paper concludes that legal critique in Poland, after a period of being repressed in the 1990s, is now returning; however, whilst its first appearance (in the socialist period) was a ‘tragedy’ (due to its inability to subject socialist law to any form of critique), its current return is a ‘farce’, since critical tools are used not for their original purpose (emancipation), but in order to further a populist-conservative project.